A little over four years ago we reported on our visit to the Mass Torts Made Perfect conference in Philadelphia. MTMP is a plaintiff lawyer organization. Every year it conducts a conference in Las Vegas, where plaintiff lawyers get together and plot our clients’ destruction (Okay, that was a bit too melodramatic) That Las Vegas conference is confined to plaintiff lawyers. Defense lawyers are not welcome. Why would they be? But MTMP’s Philly conference is open to defense lawyers. We went to that conference last week. There weren’t too many defense lawyers there. We were heavily outnumbered Still, the plaintiff lawyer hosts were unfailingly hospitable. There were a couple of defense lawyers on some of the panels. We were on a MTMP panel four years ago. As part of that gig, we rendered a spot-on (if we do say so ourselves) impersonation of one of our favorite plaintiff lawyers sidling up to the lectern and shaking his head over the defendant’s “very, very serious” discovery shortcomings. Laughter all around. Oddly, we have not been invited to be on any MTMP panels since then.
It was interesting listening to the plaintiff lawyers. And, yes, we’ll admit that we asked some of them what they thought the next mass tort would be. That part we’re keeping to ourselves, unless you’re a paying client. But there were a couple of things that might be of general interest to our readers. To wit:
- Plaintiff lawyers recognize they have a diversity problem. The defense bar is way ahead in terms of bringing first-chair female lawyers to trials. Further, take a look at the make-up of plaintiff steering committees. Most would not do well if read against our clients’ diversity checklists. The same people keep showing up on PSCs. They keep voting for each other. It is much more of an old boys’ network than you will ever see in today’s defense bar. Judges, by the way, have noticed this phenomenon.
- There is enough unhappiness with federal MDLs that some plaintiff lawyers wonder whether it might make sense to emphasize a state court strategy, where plaintiff lawyers would bring their best cases in the best jurisdictions, and try to tee up trials to take place three or more at a time. Part of the reason for unhappiness with MDLs is the practice of some plaintiff lawyers, who do not actually know the cases or how to litigate them, to park lots of mediocre cases in the MDL, free-ride, then reap the rewards. Guess what? Defendants do not like that either.
- Predictive coding might actually make sense. Human eyes simply aren’t as good as computers at corralling responsive documents.
- The best place to stand when speaking to the jury is about five and a half feet from the box, between jurors 3 and 4.
- Consider using facts gleaned from voir dire while making arguments to the jury. If you have an airplane pilot on the jury, it might make sense to talk about how the other side’s approach is like flying in no-visibility conditions without looking at the instruments. Lots of other opportunities come to mind. Think of teachers, engineers, and accountants.
Even aside from those goodies, let’s get this admission out of the way: the MTMP conference was better than most defense conferences. Why? More judges. At defense conferences, there is usually one judge panel, and it is invariably the highlight of the event. But at MTMP-Philly, there were more judges than we usually see at our conferences, and they were involved in just about every presentation. Four years ago, the MTMP conference included Judges Moss (Philly), Frank (D. Minn.), and Stack (Special Master, S.D. Illinois). They were present last week. Also present were Judges Robreno and Rufe from E.D. Pennsylvania, Corodemus from New Jersey, and Mullen from St. Louis. Those Judges had a lot to say, and all of it was interesting. Some examples:
- Maybe too many lawyers overlitigate their cases, but everyone recognizes that parties are entitled to make their records. Don’t sweat it.
- After rendering verdicts, jurors usually tell judges that the expert opinions were obviously bought and paid for, so they didn’t factor much into the outcome. [Maybe so, but a part of us wonders whether the self-reports by jurors are completely accurate. It’s like people who say they are unaffected by advertising.]
- The proportionality principle certainly must govern discovery disputes, but how, exactly, can proportionality be determined? Proportionality is inherently subjective, it’s case-specific, and judges end up sometimes relying on the lawyers’ say-so. [We wish someone would do an empirical study showing that in mass torts, not even one-ten-thousandth of produced documents are ever used, and almost all trial exhibits come from the first wave of production.]
- Law firms would be smart to adopt written policies on social media. Most jurisdictions have restrictions on who can contact whom via social media. If some lawyer or staffer violates such a rule, the existence of a policy might at least head off or limit sanctions.
- Your client might crave confidentiality, but once something is filed in court, push down those expectations. Some folks in the courthouse records room are prone to gossip.
- There was the usual discussion about federal-state cooperation in mass torts. But it turns out that one of the most contentious issues involves contributions by plaintiff lawyers to the common benefit fund. [All around us, heads were nodding. We weren’t sure whether there was anything in that topic for us, but the discussion was fascinating from the perspective of pure voyeurism.]
- Big surprise: judges like settlements. But at least one said that it was understandable how some parties might feel uncomfortable if the trial judge got too involved with settlement negotiations. A party would not be crazy to worry that the trial judge’s displeasure with settlement positions might translate into adverse rulings. So, at least for this judge, the approach was to set a firm trial date, rule according to the law, and then let the parties figure out how to get to settlement. They almost always will. [To this, we say: bless you. By our lights, judges who do everything to push the parties toward settlement are doing everyone - except plaintiffs with crappy cases - a disservice. When judges make incorrect rulings with the goal of forcing settlement, or when they sit on motions with that same goal, they are distorting the system and elevating the transactional over the legal. Just our opinion.]
Robert F. Kennedy, Jr. was the lunchtime speaker. For those of us who remember the presidential election of 1968, as well as the other events of that annus horribilis, it is impossible to hear the “RFK” name without getting a lump in the throat. Mr. Kennedy is a lawyer, and he told an inspiring story of how legal efforts cleaned up the Hudson River. That body of water was a filthy joke decades ago, and now might be the most successful river of all those emptying into the Atlantic when it comes to the health of native species. That is a feel-good story, and lawyers were the heroes. To be sure, those lawyers were plaintiff lawyers. Isn’t that the way it usually works in our culture? Which cinematic corporate defense lawyers emerge as protagonists? Robert Duvall in A Civil Action? Not quite.
In fact, a lot of film clips were played to provoke discussion among the panelists. Perhaps our only real contribution to the MTMP conference was that we were the first, if not the only, attendee to recognize the film clips from Witness for the Prosecution andAnatomy of a Murder. We were promised a reward. We never received it. Perhaps we should make application to a common benefit fund. Or maybe we will get invited back for a panel. We promise no more impersonations. In any event, everyone else had no problem recognizing My Cousin Vinny, The Insider, Liar, Liar, and The Rainmaker.
In addition to what we heard from the judges, we were treated to demonstrations by Philly plaintiff trial lawyer Robert Mongeluzzi, who has an enviable record of success. His cases are not typically mass torts; rather, his cases involve catastrophic injuries. You might be tempted to say that the facts of the cases are so strong that they win themselves. But that is not true. Mongeluzzi showed how he developed themes (such as “help” or “they knew it, they talked about it, and they did nothing about it”) to deliver maximum emotional impact. Even more interesting, Mongeuzzi explained how his law firm has a film-maker on staff, and how the firm’s practice is not to submit settlement conference or mediation briefs, but to submit settlement videos. Those videos are so powerful that they simply must grab the attention of the decision-maker who controls the purse-strings: a video of a vehicle fire, with a recording of the police call, with the screams of the victims audible in the background; a mother talking about how, since her son’s death in an accident, she keeps his chair empty at the dinner table, a daily reminder of a devastating loss; or a young woman describing how she picked out her fiancee’s funeral clothes. Remember that this was a room of experienced, maybe even jaded, attorneys and judges. But after the videos were played, you could hear the gulps. We heard someone mutter, “Yikes.” It was us.